Uganda should reconsider retirement age of judges

The provisions of the constitution relating to the independence of the judiciary, functions of its leaders, qualifications and appointment of judges, tenure and functions of the Judicial Service Commission are informed by the doctrine of separation of powers.

This is intended to ensure that the judiciary will guarantee and assure Ugandans that the rule of law shall prevail, and individual human rights be respected. This inevitably means standing up against the executive and parliament in support of the constitution.

We observe that partially due to weaknesses in some of the provisions as well as a gap between the provisions and their implementation, the courts have tended to be of little relevance in the lives of most ordinary Ugandans, especially in protecting their rights and freedoms.

In this column, we examine the provisions as to tenure and its role or lack of it in making the courts the vanguard of constitutionalism.

JUDICIAL MANDATORY RETIREMENT AGE

Our constitution is based on the views of Ugandans that were collected by the Uganda Constitutional Commission from March 4, 1988 and a report presented on December 31, 1992. The report at paragraph 17.68 page 451 states that the views of Ugandans on retirement age of judges was divided with the main proposals being 65, 70 and 75 years.

The recommendation of the Commission was that retirement “should be compulsory once a person attains the age of 65 in case of the High Court or 70 in case of the Supreme Court when it will be normal for there to be some reduction in mental capabilities…….”

Proposals for retirement at 75 years were rejected on the ground of “reduction of mental capabilities.”

We both served in Select Committee Two of the Constituent Assembly (1994/95) that analysed the chapter on the judiciary. In our recommendation to the plenary, we agreed with the commission. According to the minutes of the proceedings of the committee, page 379, we did so without debate.

We did not question the fact that “reduced mental capabilities” was found by the Commission to apply to two different age groups, namely 65 and 70 years. The Committee never questioned why “reduction to mental capabilities” applied differently in respect to persons working in the High Court and in the Supreme Court.

EARLY POSITION

Article 15 of the Orders – in – Council 1902 established the High Court of Uganda to which judges were appointed and served under the same legal regime as those in the United Kingdom. The Act of settlement 1701 provides in Section 3 that judges will serve “as long as they shall properly perform their duties” and could only be removed by a resolution of both Houses of Parliament.

Not age. From 1902 to 1962, when we got independence, there was no mandatory retirement age for judges. Article 92(1) of the 1962 constitution was the first provision to introduce a mandatory retirement age of 62 years. Later, Article 85 of the 1967 constitution increased this to 65 years. This was, therefore, the retirement age for judges when we embarked on writing a new Constitution of Uganda in 1994.

DIMINISHED RESPONSIBILITY?

As stated above, the reason for fixing retirement age was given as “declining mental capabilities”. But is this borne out by facts? There are, today a number of retired judges. However, since we do not know the exact number, we shall use former chief justices as an example for our argument.

We have had six Ugandans who have held, and vacated the office of the chief justice. Benedicto Kiwanuka is departed. The rest are still alive. They are Samuel Wako Wambuzi (1972-1975), (1979- 1980) and (1986-2001), George Masika (1980 to 1985), Benjamin Odoki (2001 to 2013), Stephen Kavuma (Acting) (2013- 2015) and Bart Katureebe (2015-2020). They have been in retirement for 24, 40, 12, 12, and five years respectively.

According to our information, all of these retired former chief justices are still strong and mentally capable.

A BURDEN

The five retired chief justices, with greatest respect to them, have been a burden on society albeit not of their making. Sections 21 to 31 of the Administration of the Judiciary Act 2020 have made this burden on society even heavier.

The cumulative number of years the five former chief justices have spent in retirement is 93 years. The taxpayer has so far paid pension for 93 years for justices who are still strong, capable of dispensing justice but not doing so because we crafted an age limit for their retirement without any scientific basis. A huge pension bill anywhere limits other services that could have been provided elsewhere.

OTHER OFFICES

President Museveni, known to be in his 80s, is executing taxing responsibilities of  an office far more demanding than that of a judicial officer. How do we explain the fact that President Museveni’s mental capabilities can extend well into the 80’s but Benjamin Odoki’s stopped at 70 years?

Secondly the Inter Parliamentary Union website shows that as at 2021, there were 17, 31 and 118 members of parliament between the ages of 71-80, 61-70 and 51- 60 respectively. Therefore, there are 73 members who are above 65 years and 17 members who have gone beyond 70 years. What is the magic?

OTHER COUNTRIES

In the United Kingdom, section 11(2) of the Senior Courts Act 1981 and Schedule 1 of the Public Service Pensions and Judicial Offices Act 2022 prescribes 75 as the mandatory age of retirement for judges.

The constitution of South Africa applies a mandatory retirement age to the Constitutional court only. The other courts are provided for in an Act of Parliament. The mandatory age for judges of the Constitutional court is a non-renewable term of 12 years or until attainment of 70 years.

However, under section four of the Judges Remuneration and Conditions of Employment Act 2001, if the judge attains 70 years, but has not completed a total service of 12 years, he or she must continue in service until he/she attains the age of 75 years.

Further, a judge who attains 70 years or whose term of 12 years has expired but is still willing to serve, can return to the court he/she served before appointment to the Constitutional court where he/she can serve until 75 years.

Article 167(1) of the Constitution of Kenya sets a uniform mandatory retirement age of 70 for the judges of the Supreme Court of Appeal and High Court.

Schedule 2 of the justice Legislation Amendment Act (No 3) (2018) of New South Wales increased the mandatory retirement age for Judges from 72 to 75 years. Other examples of countries that have fixed 75 as retirement age for judges include Canada, Fiji, Lesotho and New South Wales and Swaziland.

ATTEMPTS AT REFORM IN UGANDA

Bukimbiri county MP Eddie Kwizera and Nakifuma county MP Robert Sekitoleko introduced private member’s Constitutional Amendment Bills in 2013 and 2015, respectively seeking to change the retirement age for Supreme court judges from 70 to 75 years. Both were unsuccessful.

However, some of the reasons that were advanced against the bill do not make sense. They included the following: that the president had taken a long time to appoint a chief or deputy chief justice after the offices fell vacant as was the case in July 2013 when there was no substantive chief justice or deputy in office.

Secondly, that it would be illegal as it would amount to amending the constitution; thirdly, that high unemployment rate made the bills unrealistic; fourthly, it would not solve the challenges of low pay and poor working conditions in the judiciary; and lastly, that Uganda does not lack lawyers with experience to occupy the offices.

The Law Development Centre argued that the age should instead be lowered to have younger judicial officers to join the bench. The Law Society opposed the bill on the ground that if approved it would impede junior judges and magistrates an opportunity to be promoted.

Instead of looking at the merits and demerits, debate instead focused on individuals personal ambition and grievances against individual judges and seeking for jobs.

WHAT ARE THE DANGERS OF A LOW MANDATORY RETIREMENT AGE?

INDEPENDENCE OF THE JUDICIARY

A judge, while on the bench, may contemplate retirement without work if he or she is still capable of working. In such a case, decisions may be made with this factor in mind. We give Justice Kavuma as an example. Ten years after retirement, he is still serving as chairman of the Uganda Civil Aviation Authority.

What message does that send to a serving justice faced with eminent compulsory retirement but still fit and capable of working?

George Robertson QC in his publication Judicial Independence: Some Recent Problems (2014) (https://griffithlawjournal.org/index. php/gjlhd/article/view/585) found that the prospect of lucrative employment is an incentive for judges.

He gives an example of a judgment by a judge who was close to retirement, protected a corrupt son of a prime minister who immediately after retirement was appointed to various commissions. He concludes that raising judicial retirement age cements judicial independence.

EXPERTISE AND EXPERIENCE

People now work later into their lives as there is improvement in life expectancy. In 1962, when retirement age was fixed at 62 years, the life expectancy was 45.22. This rose to 48.00 when it was increased to 65 years. When 65/70 was adopted as age of retirement for judges in 1995, the life expectancy was 44.44.

However, today life expectancy in the age of retirement for judges stands at 64.96. This alone peaks for increment in the age of retirement for judges. (www.macrotrends. net>countries>ug>life-expectancy)

LOST OPPORTUNITIES

Loss of opportunities to have diversity by blocking individuals considering applying to become judicial officers later in life, especially professors of law and other academics. A high retirement age makes judicial offices more dignified and potentially more attractive, as judges know they will be able to continue in service without the harassment of having to leave office at a young age.

The failure to consider one of the main proposals by the people of Uganda was an error. The mandatory age in Uganda for judges is low and ought to be increased.

wogalo183@gmail.com

The writers are advocates in the courts of judicature